These comments have also been submitted via the park’s PEPC website.
August 28, 2021
Mike Reynolds, Superintendent
Death Valley National Park
P.O. Box 579
Death Valley, CA 92328
Subject: Comments on the Death Valley National Park Proposed Air Tour Management Plan
Dear Superintendent Reynolds:
I am writing on behalf of over 1,900 members of the Coalition to Protect America’s National Parks (Coalition), whose membership is comprised of retired, former, or current National Park Service (NPS) employees. As a group we collectively represent over 40,000 years of experience managing and protecting America’s most precious and important natural and cultural resources. Among our members are former NPS directors, regional directors, superintendents, resource specialists, rangers, maintenance and administrative staff, and a full array of other former employees, volunteers, and supporters.
On behalf of our membership, we offer the following comments for your consideration regarding the proposed Air Tour Management Plan (ATMP) for Death Valley National Park (DEVA):
A. General Comments applicable to all proposed ATMPs.
General Overview: The National Parks Air Tour Management Act of 2000 (the Act or NPATMA) requires the Federal Aviation Administration (FAA), in cooperation with the National Park Service (NPS), to develop an Air Tour Management Plan (ATMP) for each park or tribal land where air tour operations occur or are proposed. While the FAA has the sole federal authority to regulate airspace over the United States, at its core the NPATMA is a park protection law. It requires the agency of authority, the FAA, to cooperate with the NPS to jointly develop ATMPs “to mitigate and prevent the significant adverse impacts, if any, of commercial air tour operations upon the natural and cultural resources, visitor experiences, and tribal lands.”
The NPATMA does not mandate that air tours are to occur over national parks. Notably, Section 40128(b)(3)(A) of the Act states, in part: “An air tour management plan for a national park… may prohibit commercial air tour operations in whole or in part.” In contrast, the NPS Organic Act; the respective park establishment acts; and, for parks that contain areas managed by NPS to protect wilderness character, the Wilderness Act are the conservation mandates that should govern the NPS decision process regarding air tours. As a result, the burden of proof rests on the NPS to demonstrate why air tours do not impair park resources or visitor experience opportunities at the parks in question.
Furthermore, air tours are not park operations – they are typically initiated outside of parks; they are not managed like concessions; and they are not inherently related to park operations or visitor services. For example, in our view it would be very difficult for NPS to justify allowing air tours if NPS were to prepare an “appropriate use analysis” as described in NPS Management Policies 2006, Sections 1.5 and 8.1.2. Additionally, the airspace governed by the Act is relatively limited. It’s defined as “up to 5,000 above the ground and within ½ mile of park boundaries.” In essence, it only applies to low-altitude commercial air tour flights over these parks. Such flights could easily avoid ATMP requirements entirely simply by flying no less than 5,001 feet above ground level (AGL) at these parks.
As Yogi Berra once famously said, “When you come to a fork in the road, take it.” Now, over twenty years after the passage of the NPATMA, the joint preparation of ATMPs under the umbrella of FAA’s sole authority to regulate U.S. airspace offers the NPS a tremendous opportunity to finally address longstanding concerns about noise and other adverse impacts of low flying air tours at a number of parks. However, we are very concerned that the initial four ATMPs available for public comment are simplistic documents with no scientific data or analysis (i.e., no NEPA review) to support the proposed actions; and no consideration of alternatives other than to institutionalize the status quo level of air tours at the respective parks.
To reiterate, air tours over parks are not mandated; but the conservation of park resources and visitor experience opportunities is! Instead of simply adopting the status quo, as proposed, we urge the NPS to “take the fork in the road” that follows the agency’s well established mission, mandates, and planning processes. This includes taking the requisite “hard look” at the relative impacts and benefits of the proposed action; considering a reasonable range of alternatives and comparing the proposal to those alternatives; and conscientiously evaluating whether commercial air tours are appropriate at any given park based on the resources and values at risk.
With that as context, we offer the following general comments about the ATMP planning process:
General Comment #1: NPS has issued proposed actions (the ATMPs) for public comment without disclosing the environmental impacts of that action as required under the National Environmental Policy Act (NEPA) and related Federal Aviation Administration (FAA) and NPS NEPA policies.
Our utmost concern with the proposed actions is that there is no mention of National Environmental Policy Act (NEPA) compliance in the Notice of Availability / Public Meeting Notice nor in the proposed ATMP. We gather from other documents posted on the respective “Air Tour” websites for the FAA and NPS that the FAA is the lead agency for conducting an appropriate level of NEPA review, while the NPS is a cooperating agency. However, there is no information we could find on either website regarding what level of NEPA review (e.g., an EA vs. an EIS) that the FAA intends to prepare. In addition, we could find no information suggesting that the ATMPs were somehow exempt from NEPA compliance. See
https://www.faa.gov/about/office_org/headquarters_offices/arc/programs/air_tour_management_plan/ and https://www.nps.gov/subjects/sound/airtours.htm.
Simply put, asking stakeholders and the public to comment on a proposed federal agency action (the proposed ATMP) without coincidently disclosing potential impacts of that action violates the Council on Environmental Quality (CEQ) NEPA implementing regulations, as well as FAA and NPS NEPA policies.
First, CEQ regulations at 40 CFR §1501.2(b)(2) require Federal agencies to “[i]dentify environmental effects and values in adequate detail so the decision maker can appropriately consider such effects and values alongside economic and technical analyses. Whenever practicable, agencies shall review and publish environmental documents and appropriate analyses at the same time as other planning documents.” (Emphasis added.) See https://www.law.cornell.edu/cfr/text/40/1501.2.
Second, FAA’s NEPA policies are described in Order 1050.1F. Section 1-8 of the Order states, in part: “The FAA decision-making process must consider and disclose the potential impacts of a proposed action and its alternatives on the quality of the human environment… The FAA must integrate NEPA and other environmental reviews and consultations into agency planning processes as early as possible.” Section 2-3.1 states, in part: “Environmental issues should be identified and considered early in a proposed action’s planning process to ensure efficient, timely, and effective environmental review.” Section 2-5 states, in part: “NEPA and the CEQ Regulations, in describing the public involvement process, require Federal agencies to: consider environmental information in their decision-making process; solicit appropriate information from the public; fully assess and disclose potential environmental impacts resulting from the proposed action and alternatives; and provide the public with this information and allow it to comment on these findings.” (Emphasis added.) See
Last but not least, NPS NEPA policies are described in its NEPA Handbook 2015. Section 1.4.A. Characteristics of NEPA Review, states, in part: “While various aspects of planning may take place prior to initiating the NEPA process, the appropriate level of NEPA review must be completed before the NPS takes an action that has the potential to affect the quality of the human environment” (see p. 12); “NEPA requires analysis and disclosure of the impacts an agency’s actions would have on the human environment” (see p. 13); and “The CEQ regulations state that agencies must apply NEPA early in the planning and decision-making process (1501.2). The NEPA process should begin when the NPS has a goal for which it is actively preparing to make a decision and has developed a proposal to the point where its environmental impacts can be meaningfully analyzed (1508.23; 46.100(b))” (see pp. 14-15). (Emphasis added.) See
In sum, by issuing the proposed ATMPs for public comment in advance of and apart from any NEPA analysis, the FAA and NPS have improperly separated the “plans” from the necessary “compliance.” In doing so, the agencies have not adequately disclosed to the public the potential impacts of the proposed actions and other alternatives, including a No Action alternative, which would provide a baseline for comparison of the Proposed Action.
Recommendation: To address this significant flaw in the planning process, we urge NPS to withdraw the proposed ATMPs from further public review until the respective proposals can be properly described, analyzed, and compared with alternatives within the context of an appropriate level and properly integrated NEPA/NHPA/ESA compliance document. Only then should the integrated “ATMP/NEPA document” be released for public comment.
General Comment # 2: Similar to the above concern, the proposed ATMP documents provide no information regarding FAA and/or NPS compliance with Section 106 of the National Historic Preservation Act (NHPA), which should include consultation with potentially affected Native American Tribes.
Given the numerous references in the status reports to the Court regarding Section 106 (NHPA) consultation with affected Tribes, the proposed ATMPs surprisingly lack any information regarding the results of such consultation. As described in CEQ’s NEPA implementing regulations and FAA and NPS NEPA policies, NHPA compliance and other forms of compliance with other applicable federal statutes (such as the Endangered Species Act) should be integrated into the NEPA document prepared for the same proposed action.
First, CEQ regulation 40 CFR §1502.25 (a) states that “[t]o the fullest extent possible, agencies shall prepare draft environmental impact statements concurrently with and integrated with environmental impact analyses and related surveys and studies required by the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.), the National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq.), the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), and other environmental review laws and executive orders.” (Emphasis added.)
Second, FAA Order 1050.1F, Section 2-4.4, requires FAA, when preparing a NEPA document on a proposed action that may impact Native American Tribes, to conduct government-to-government consultation with the Tribe(s) “in accordance with the requirements of FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures.” See
Last but not least, Section 4.14 of the NPS NEPA Handbook 2015 states: “There are a variety of federal, state, and local environmental review and consultation requirements that can overlap with the NEPA process. The CEQ and DOI regulations direct that NEPA reviews should be integrated with analyses used to meet such other requirements.” (Emphasis added.)
However, stating the obvious, since there is no NEPA review presented with the proposed ATMPs, there is likewise no NHPA discussion or analysis nor any other evidence that Tribal consultation requirements have been met.
Recommendation: NPS should withdraw proposed ATMP(s) from further public review until each proposal and related Tribal consultation can be described, analyzed and consolidated into an appropriate level NEPA document. Only then should the fully integrated ATMP/NEPA/NHPA compliance document be released for public review.
General Comment # 3: For each ATMP, NPS should also prepare an “appropriate use analysis” as described in NPS Management Policies 2006, Sections 1.5 and 8.1.2.
Under the NPATMA, the FAA granted Interim Operating Authority (IOA) for air tours over certain parks. An IOA does not provide any operating conditions (e.g., routes, altitudes, time of day, etc.) for air tours other than an annual limit. In essence, commercial air tours operating over those parks up until this point have been allowed but not regulated in any meaningful way.
Preparation of the ATMPs under the NPATMA provides the NPS with its first real opportunity to decide whether to authorize and manage air tours at specific parks or to prohibit them. The fact that air tours have been previously occurring at some parks does not automatically establish that those specific air tours are, in fact, “appropriate” in the context of the NPS conservation mandate. Nor does their “previously occurring” status mean that those air tours should necessarily be allowed to continue.
Congress contemplated that air tours over parks may, in fact, be inappropriate in some cases and therefore provided the agencies with the mechanism in the Act to address such situations. Section 40128(b)(3)(A) of the Act states, in part: “An air tour management plan for a national park… may prohibit commercial air tour operations in whole or in part.” However, the NPS has never formally considered whether air tours are an appropriate use over any of those parks or portions thereof.
NPS Management Policies (MP) Section 1.5 states, in part: “A new form of park use may be allowed within a park only after a determination has been made in the professional judgment of the superintendent that it will not result in unacceptable impacts.” MP Section 8.1.2 describes the Process for Determining Appropriate Uses, which includes: “All proposals for park uses will be evaluated for consistency with applicable laws, executive orders, regulations, and policies; consistency with existing plans for public use and resource management; actual and potential effects on park resources and values; total costs to the Service; and whether the public interest will be served.”
In sum, air tours are not mandated under the NPATMA; and the Act provides that agencies may use a park ATMP to prohibit air tours in whole or in part. As a result, it is imperative that NPS include a formal appropriate use analysis as part of its ATMP planning documents in order to support its park-specific proposed action, whether it be to allow or to prohibit air tours.
General Comment # 4: There is a notable lack of sound science (i.e., acoustic science) provided in the ATMPs to support any of the proposed provisions.
The NPS Natural Sounds Office has a strong reputation for its technical capability to collect acoustic data in the field and to prepare credible scientific analysis of noise impacts. For example, that office has previously prepared Natural Sounds Acoustic Monitoring Reports for many of the parks required to issue ATMPs. See
https://www.nps.gov/subjects/sound/acousticmonitoring_reports.htm. Yet none of the ATMPs issued thus far contain any such analysis; even though the NPS evidently has baseline data for ambient sound levels at many of the air tour parks. And the ATMPs provide no explanation for why such information has been omitted.
In addition, there is a considerable amount of scientific analysis and technical information regarding aircraft noise in FAA Advisory Circular AC No. AC-93-2 and its associated appendices. For example, see
https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC-93-2.pdf. Yet again there is no such information or analysis provided in the ATMPs to explain and support any of the noise-related provisions in the proposed plans.
Recommendation: NPS should withdraw all ATMPs from further public review until such time that the FAA and/or NPS can provide the scientific information and analysis, presumably in an appropriate level NEPA document, to explain and support the noise-related provisions in the ATMPs.
General Comment # 5: National parks, especially those managed, in part, to protect wilderness characteristics, meet the FAA definition of “noise sensitive areas” and should be treated as such in the respective ATMPs. For example, as a minimum altitude requirement for air tours over national park units, NPS should adopt the FAA recommendation for “pilots operating noise producing aircraft over noise sensitive areas,” which is “not less than 2,000 feet above ground level,” unless NPS can justify a higher minimum altitude due to park-specific conditions .
Previously cited FAA Order 1050.1F, p. 11-3, defines “noise sensitive area” as:
“An area where noise interferes with normal activities associated with its use. Normally, noise sensitive areas include residential, educational, health, and religious structures and sites, and parks, recreational areas, areas with wilderness characteristics, wildlife and waterfowl refuges, and cultural and historical sites.” (Emphasis added.)
The issue of adverse impacts of excessive aircraft noise to “noise sensitive areas” is described in detail in FAA Advisory Circular (AC) No. 91-36D. Section 6.a. of the AC states, in part:
“Excessive aircraft noise can result in annoyance, inconvenience, or interference with the uses and enjoyment of property, and can adversely affect wildlife. It is particularly undesirable in areas where it interferes with normal activities associated with the area’s use, including residential, educational, health, and religious structures and sites, and parks, recreational areas (including areas with wilderness characteristics), wildlife refuges, and cultural and historical sites where a quiet setting is a generally recognized feature or attribute. Moreover, the FAA recognizes that there are locations in National Parks and other federally managed areas that have unique noise-sensitive values.” (Emphasis added.) See
As a voluntary practice the same FAA Advisory Circular, Section 8.b., recommends that: “Pilots operating noise producing aircraft (fixed-wing, rotary-wing and hot air balloons) over noise sensitive areas should make every effort to fly not less than 2,000 feet above ground level (AGL), weather permitting. For the purpose of this AC, the ground level of noise-sensitive areas is defined to include the highest terrain within 2,000 feet AGL laterally of the route of flight, or the uppermost rim of a canyon or valley.” (Emphasis added.)
However, because the respective park ATMPs will, in effect, authorize recurring commercial flights (i.e., air tours) over portions of a park, we believe nothing less than the FAA “recommendation” that pilots fly “not less than 2,000 feet AGL” should be the minimum altitude AGL “requirement” in some parks; and a higher AGL requirement may justified in many parks based on park-specific conditions. For example, a higher minimum altitude AGL requirement (higher than 2,000 feet AGL) may be necessary and appropriate in mountain parks where the primary scenic feature is the mountain(s), which may tower thousands of feet above the surrounding landscape. In such cases, the AGL requirement in the ATMP should also include a minimum horizontal setback distance from the majestic mountain peak.
Recommendation: ATMPs should not allow air tour flights to fly anything less than 2,000 feet AGL over any park, weather permitting, unless a higher AGL requirement is justified and explained in the related NEPA review.
General Comment # 6: Section 3.1 of the ATMPs establishes an annual cap (or limit) on the number of air tour flights authorized, a process which we commend in most cases.
The basis for the proposed cap(s) is explained in Section 4 Justification for Measures Taken in each respective ATMP. As explained, under the NPATMA the FAA granted Interim Operating Authority (IOA) for air tours over some parks. The IOA does not provide any operating conditions (e.g., routes, altitudes, time of day, etc.) for air tours other than an annual limit. In most cases, the annual limit(s) authorized under the IOAs was significantly higher than the actual level of use that has occurred. The proposed annual limit(s) in the respective ATMPs are based on the 3-year average of the total air tours reported over each park in 2017, 2018 and 2019.
In general, this approach of limiting the number of air tours annually based on recent actual use seems reasonable and appropriate to us. In keeping with the precautionary principle during this transition from allowing air tours under IOAs to managing them under ATMPs, it is especially important that NPS establish rational, realistic limits on the numbers of air tour flights allowed under an ATMP; then base any future adjustments in those limits on relevant data collected during the course of the ATMP and an appropriate analysis of such data.
That said, several of the proposed ATMPs (e.g., for Mount Rainier NP and DEVA) propose to allow a negligible number of annual flights (i.e., 1 and 2 respectively), which tells us there has been virtually no demand for air tours at those parks. Allowing one or two air tours over a park per year is patently absurd; it is neither a viable business opportunity, nor can it be reasonably shared or redistributed among New Entrants. Furthermore, these two parks (MORA and DEVA) are primarily composed of wilderness, which begs the question – given the recent history of very limited demand for air tours over these parks, why would NPS choose to allow any air tours moving forward? These are perfect examples of when NPS should exercise the option under Section 40128(b)(3)(A) of the Act, which provides that “[a]n air tour management plan for a national park… may prohibit commercial air tour operations in whole or in part.” (Emphasis added.)
Recommendation: Air tours should be prohibited over parks like MORA and DEVA where the recent history indicates few, if any, flights occurring.
General Comment # 7: Section 3.7 of the ATMPs establishes “Additional Requirements” including annual operator/pilot training “when made available by park staff.” NPS should also consider requiring air tour operators to provide air tour passengers (i.e., customers) with an educational brochure or rack card jointly developed by NPS and FAA.
Section 3.7A of the ATMPs provides that, when offered by NPS, air tour pilots will attend at least one training course per year conducted by NPS staff. We commend the concept of this training, which as described would include “Park information that the operator can use to further their own understanding of Park priorities and management objectives as well as enhance the interpretive narrative for air tour clients and increase understanding of parks by air tour clients. For example, trainings may include natural resources, cultural resources, or visitor use specific topics.”
While we commend this provision, we are concerned that, as written (i.e., “when made available by park staff”), it sounds as if a park may choose to skip the training entirely. We believe it is essential that each air tour park actually provide such training. We also believe there are simple measures to inform and educate air tour passengers regarding the special places they are flying over that could and should be included under Additional Requirements. See recommendation below.
Recommendation: In addition to ensuring that the park provide annual pilot training, we recommend that NPS require air tour operators to provide air tour passengers with an educational brochure or rack card (e.g., jointly prepared by the FAA and NPS) that informs the public they will be flying over a noise sensitive area, which may include wildlife habitat, wilderness areas and cultural sites; and special restrictions (such as AGL requirements) are in effect to minimize the adverse impacts of aircraft noise on the environment below.
General Comment # 8: Section 3.8 of the ATMPs discusses “quiet technology incentives” for air tour operators; but fails to provides a meaningful description, definition or reference to a definition, or technical specifications (such as measurable noise reduction parameters) for what constitutes “quiet technology aircraft.”
While we applaud the concept, this provision in the ATMPs is meaningless if it cannot be defined and measured. We wonder if NPS intended for this section to adopt FAA Advisory Circular No. AC-93-2 guidance “for determining the … quiet aircraft technology designation status for each aircraft” used for air tours at Grand Canyon National Park; or some other FAA guidance? See
Frankly, the reader (whether it is us, the interested public, or a prospective air tour operator) should not have to wonder what NPS means when it refers to “quiet technology aircraft” in the ATMP. NPS should define, either directly or by reference, the terminology used in the ATMPs.
Recommendation: To address this concern, Section 3.8 of each ATMP should include a definition or at least a reference to FAA guidance defining “quiet technology aircraft.” For example, the opening sentence of the section could be revised to state: “This ATMP incentivizes the adoption of quiet technology aircraft, (add) “as described in FAA Advisory Circular AC-93-2”, by the commercial air tour operator conducting commercial air tours over the Park.”
General Comment # 9: Section 6, regarding “New Entrants,” seems to leave the door open for additional flights above the annual cap stated in Section 3.1 if/when New Entrants are involved.
Section 6 indicates that, in addition to existing air tour operators, New Entrants may be accommodated under a park’s ATMP. However, by not mentioning in Section 6 the annual cap on the number of air tour flights established in Section 3.1, the respective ATMPs seem to leave open the possibility that the total number of flights could be increased as additional operators are brought on board. We hope such an increase was not the NPS intent. Regardless, NPS should make it clear in Section 6 that the designated annual cap remains in effect no matter how many New Entrants are granted air tour permits.
Recommendation: To address this concern, we request that Section 6 be clarified to say that, “While the allotment of annual flights may be redistributed from existing operator(s) to accommodate new entrants, the cap on the total number of annual flights will remain the same as stated in Section 3.1 of the plan.”
II. Specific Comments about the proposed ATMP for Death Valley National Park (DEVA)
Park Overview: (adapted from Section 2.1 of the proposed ATMP)
Death Valley NP is the largest U.S. National Park outside of Alaska. The Park comprises 3,422,024 acres, 93% of which is protected as officially designated wilderness. Wilderness areas within the Park include low valley floors crusted with barren salt flats, rugged mountains rising as much as 11,000 feet, deep and winding canyons, rolling sand dunes, and spring-fed oases. These climatic and topographic extremes collectively result in exceptional biodiversity and a wide range of resilient desert ecosystems, many of which serve as habitat for federally threatened and endangered species.
Numerous cultural resources are present within the Park, including archaeological sites, ethnographic resources, historic structures, and museum collections. The Timbisha Shoshone Tribe has tribal lands inside and abutting the Park and a management interest in the Timbisha Shoshone Natural and Cultural Preservation Area within the Park. The Timbisha Shoshone Homeland Act (P.L. 106-423) specifies the “Timbisha Shoshone Natural and Cultural Preservation Area” as an area to be managed with special considerations for the Timbisha Shoshone Tribe. Several other tribes also attach religious or cultural significance to areas within the Park.
DEVA Comment #1: The proposed DEVA ATMP lacks any scientific information and impact analysis (i.e., NEPA review) to support the proposed action.
This concern is essentially the same as that described in General Comment # 1 above. The DEVA ATMP states that, “The objective of this ATMP is to develop acceptable and effective measures to mitigate or prevent the significant adverse impacts, if any, of commercial air tours on natural and cultural resources, visitor experiences and tribal lands.” This objective suggests there should be a NEPA analysis of the proposed plan to determine if there are any significant impacts on the environment, as required under the CEQ NEPA implementing regulations. However, as stated repeatedly in these comments, the proposed ATMP has been issued for public comment in advance of and separated from any NEPA review to support the provisions of the proposal. The utter failure of NPS and FAA to disclose the potential impacts of the proposed action (the ATMP) is a major flaw in the planning process.
Recommendation: NPS should withdraw the proposed DEVA ATMP from further public review until such time that it can be re-released in the context of an appropriate level NEPA document that analyzes impacts of several alternatives, including the NPS proposed action. The proposed action in the combined document should be revised to prohibit air tours at DEVA.
DEVA Comment # 2: Similar to General Comment # 2 above, the DEVAA ATMP provides no information regarding the FAA’s and/or NPS’s Section 106 consultation with federally recognized Indian Tribes in the area. Such consultation is required under the National Historic Preservation Act (NHPA).
See General Comment #2 above for our general concern about the apparent lack of NHPA compliance. Specifically, the ATMP provides no information regarding consultation with the Timbisha Shoshone Tribe. Suffice it to say that formal consultation with the Tribe is a requirement, not a recommendation, under the NHPA. We will not elaborate further here.
Recommendation: NPS should withdraw the proposed DEVA ATMP from further public review until such time that it can be re-released in the context of an appropriate level NEPA document which includes information about compliance with NHPA consultation requirements, as well as compliance with consultation requirements under other applicable federal statutes, such as the Endangered Species Act (ESA). The proposed action in the combined document should be revised to prohibit air tours at DEVA.
DEVA Comment # 3: The DEVA ATMP should also include an appropriate use analysis as described in NPS Management Policies 2006, Sections 1.5 and 8.1.2.
Preparation of the ATMPs under the NPATMA provides the NPS with its first real opportunity to decide whether to authorize and manage air tours at DEVA or to prohibit them. The fact that air tours have been previously occurring at DEVA does not automatically establish that those specific air tours are, in fact, “appropriate” in the context of the NPS conservation mandate.
NPS has never formally considered whether air tours are an appropriate use over MORA as described in NPS Management Policies 2006. Instead of assuming that previously existing air tours must be appropriate and then adopting the status quo number of air tours, as proposed in the ATMP, NPS should prepare an “appropriate use analysis” as part of its planning document(s) to determine if such use should even be allowed or if it should prohibited as provided for in Section 40128(b)(3)(A) of the NPATMA. As described previously, air tours are not mandated under the Act and “[a]n air tour management plan for a national park… may prohibit commercial air tour operations in whole or in part.”
Recommendation: As part of the planning process, NPS should prepare an appropriate use analysis in accordance with NPS Management Policies that serves, in part, as the basis for determining whether air tours of any amount should be allowed or prohibited at DEVA. Given the park resources and values at risk from air tour noise, the proposed action in the should be revised to prohibit air tours at DEVA.
DEVA Comment # 4: We have several comments regarding Section 3 Conditions for the Management of Commercial Air Tour Operations at the Park.
A. Section 3.1 Annual Commercial Air Tours Authorized – As described in this section, DEVA would allow a total of two (2) commercial air tour flight annually. This number is based on the existing 3-year average of the total air tours reported in 2017, 2018 and 2019, which tells us that there is virtually no demand for air tours at DEVA. Proposing to allow just two air tours per year is patently absurd; since two tours a year is not a viable business opportunity, nor can it be reasonably shared or redistributed among New Entrants. In brief, NPS offers no good explanation or justification for allowing two air tours per year at DEVA, as proposed.
In contrast, we can think of numerous good reasons why air tours should be prohibited at DEVA, including:
- Over 3.1 million acres (93%) of DEVA is managed as designated Wilderness, which places a premium on preserving natural sounds and quietness, and a sense of remoteness and solitude in much of the park. As a result, the Park acoustic environment (i.e., sounds within the Park) supports outstanding visitor experience opportunities to hear and enjoy natural sounds and quiet.
- The importance of preserving natural sounds and quietness is described on the park’s Natural Soundscape webpage
- Death Valley National Park’s naturally dry landscape combined with the geography of the region and its remoteness make portions of Death Valley some of the most naturally quiet landscapes in the continental United States.
- The natural soundscape at the park includes everything from wildlife to wind to the thunderstorms that occasionally visit the park during an active monsoon season. These natural soundscapes are important for the visitor experience and a resource essential for the survival and reproduction of wildlife.
- In the naturally quiet environment of Death Valley even noise from motor vehicles can spread deep into canyons and wilderness areas far away from the road itself! In 2017 the park conducted a study to evaluate how different pavement types could reduce the impact of noise from roadways and further protect the park’s naturally quiet soundscape.
- Park elevations range from Badwater Basin, the lowest point in North America at 282 feet below sea level, to the 11,049-foot Telescope Peak, the highest point in the park.
- DEVA is among the top twenty most visited national parks and hosts visitors year round; and
- There are no thriving air tour businesses at DEVA that would be adversely impacted by the FAA and NPS prohibiting air tours at the park.
Recommendation: We urge the NPS to exercise the provision cited in Section 40128(b)(3)(A) of the NPATMA, which is to use the ATMP planning process to prohibit air tours at DEVA. There is no reasonable justification for allowing two air tours per year, as proposed; there are many good reasons for prohibiting them.
B. Section 3.2 Commercial Air Tour Routes and Altitudes – As proposed, helicopter air tours will fly no lower than 1,000 feet (ft.), while fixed wing aircraft will fly no lower than 1,500 ft. AGL. At the Park, air tours will fly at least one mile laterally from the Timbisha Village at Furnace Creek, except as necessary for takeoff and landing at Furnace Creek Airport. Figure 2 provides a map of proposed air tour routes. It shows 2 helicopter routes and 5 airplane routes for a total of 7 different required air tour routes.
First and foremost, we strongly oppose allowing any air tours at DEVA for the reasons listed in the previous comment. Further comments regarding air tour routes and altitudes are moot if NPS does, in fact, prohibit air tours. However, if NPS chooses to implement the proposal as described, we offer the following conditional comments:
- The proposed minimum altitude requirements for helicopters (1,000 feet AGL) and airplanes (1,500 feet AGL) is in direct conflict with in FAA Advisory Circular (AC) No. 91-36D regarding flights over “noise sensitive areas.” The AC recommends (but does not require) that pilots fly not less than 2,000 feet AGL, weather permitting, over noise sensitive areas such as parks and wilderness areas. However in this case, DEVA checks both boxes and clearly qualifies as a noise sensitive area, as 93% of the park are designated Wilderness. Given the importance of protecting natural soundscapes as described on the DEVA website, it is perplexing why NPS would not protect the park from air tour noise to at least the level recommended by the FAA.
- Helicopters are typically noisier and fly slower than airplanes, so if managing air tour noise is truly an NPS concern it makes no sense to allow helicopters to fly lower than airplanes. For technical details regarding the noise standards applicable to helicopters vs. airplanes, see FAA regulations at Title 14 CFR Part 36 Subpart F and Appendix F, noise standards for small propeller driven planes; and Subpart H and Appendix H, noise standards for helicopters.
- Because of the amount of designated Wilderness at DEVA and the relative differences in the respective noise levels of helicopters vs. small airplanes, if NPS and the FAA allow air tours to continue at DEVA, the minimum altitude for both helicopters and airplanes should be no less than 3,000 feet AGL, except during takeoff and landing at the Furnace Creek Airport.
- Lastly, Figure 2 shows 7 different air tour routes. This is unnecessarily complicated given that NPS proposes to allow only 2 air tours per year. The number of routes should be reduced to the minimum number necessary.
Recommendation: NPS should use the ATMP process to prohibit air tours at DEVA. There is no reasonable justification for allowing two air tours per year, as proposed; there are many good reasons for prohibiting them.
C. Section 3.8 Quiet Technology Incentives – Comments on this section are moot if NPS prohibits air tours. However, if NPS sticks with its proposal to allow two air tours per year at DEVA, then NPS should describe or define what it means by “quiet technology aircraft.” If NPS intended to adopt FAA Advisory Circular No. AC-93-2 (or other appropriate guidance) as the basis “for determining the … quiet aircraft technology designation status for each aircraft” for air tours, then NPS should make that clear in this section of the DEVA ATMP. Otherwise, this provision is essentially meaningless without identifying a standard of some sort to determine what is acceptable as “quiet aircraft technology.” See General Comment # 7 above.
DEVA Comment # 5: Section 6 New Entrants seems to leave open the possibility of additional flights above the annual cap established for DEVA in Section 3.1 of the ATMP if/when “New Entrants” are involved. NPS needs to clarify its intent regarding this provision.
Comments on this section are moot if NPS prohibits air tours. However, if NPS chooses to allow two air tours per year at DEVA, as proposed, then we suggest NPS add wording to this section to clarify that “While the allotment of annual flights may be redistributed from existing operator(s) to accommodate new entrants, the cap on the total number of annual flights will remain the same as stated in Section 3.1 of the plan.” Lacking such clarification, it creates the impression that NPS may or could increase the number of air tours allowed without further planning or compliance.
DEVA Comment # 6: Section 8 Adaptive Management indicates that minor modifications may be made to this ATMP in the future without a formal ATMP amendment “if the impacts of such changes are within the impacts already analyzedby the agencies under the National Environmental Policy Act, the National Historic Preservation Act, and the Endangered Species Act.” To repeat ourselves again, it is very problematic that there has been no NEPA, NHPA, or ESA analysis issued with this ATMP.
Comments on this section are moot if NPS prohibits air tours. However, if NPS chooses to allow one air tour a year at DEVA, as proposed, Section 8 of the ATMP indicates that adjustments to the number of commercial air tours could be made without a formal ATMP amendment or additional NEPA compliance. As described, such modifications may be made if: 1) the NPS determines they are necessary to avoid adverse impacts to Park resources, values, or visitor experiences; 2) the FAA determines the need for such changes due to safety concerns; or 3) the agencies determine that appropriate, minor changes to this ATMP are necessary to address new information or changed circumstances.
To repeat a recurring concern with the NPS/FAA planning process, there has been no NEPA, NHPA, or ESA analysis presented with this ATMP. To say that the ATMP may be modified based on existing compliance when that compliance does not yet exist seems premature. Asking the public to comment on a proposed federal action now without disclosing potential impacts of such action when initially proposed, as NPS and FAA have done, is a fundamental flaw in this planning process. It is even more egregious for the agencies to say that they may make future modifications to the ATMP without any further compliance since the proper initial compliance is already lacking.
Recommendation: We urge NPS to withdraw the proposed DEVA ATMP from further public review until the proposal can be properly described, analyzed, and compared with alternatives within the context of an appropriate level NEPA document. Only then should the integrated ATMP/NEPA/NHPA/ESA document be released for public comment. The proposed action in the combined document should be revised to prohibit air tours at DEVA.
III. Closing Comments
In closing, the NPS approach of presenting the proposed action (the ATMP) for public comment in advance of and apart from the required compliance documents has not been explained and is neither understandable nor acceptable. Such an approach sets a harmful procedural precedent for future planning efforts and is very likely to be counterproductive to the necessary completion of all twenty-three ATMPs by the court-approved deadline. It is likely that many of the public comments submitted on this proposed ATMP will focus on this major procedural flaw rather on the substantive details of the individual plan. It is also very likely that the NPS approach of separating the “plan” from the “compliance” will invite further legal challenge, if not by the Petitioners in the existing case, then by other conservation groups who are equally concerned about the process.
To address this significant flaw in the planning process, we urge NPS to hit the pause button and withdraw the proposed ATMP from further public review until the proposal can be properly described, analyzed, and compared with alternatives within the context of an appropriate level NEPA review that integrates NEPA/NHPA/ESA compliance into one document, as is required under CEQ regulations and agency policies. The proposed action should be revised to prohibit air tours at DEVA.
Last but not least, we urge the NPS to exercise the provision cited in Section 40128(b)(3)(A) of the NPATMA, which is to use the ATMP planning process to prohibit air tours at DEVA. There is no articulable justification for allowing two air tours per year at the park, as proposed; but there are many good reasons for prohibiting them.
We appreciate the opportunity to comment on this important issue.
Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks
2 Massachusetts Ave NE, Unit 77436, Washington, DC, 20013
Cindy Orlando, Acting Regional Director, Regions 9, 10 and 12, NPS
Karen Trevino, Chief, Natural Sounds and Night Skies Division, NPS